Having now read the four recently released ‘torture’ memos, I was perhaps most struck with their bureaucratic tone and the sterile overall narrative that they presented. The earlier Yoo/Bybee memos dealing with general issues such as the meaning of the term ‘torture’ in the UN Convention against Torture and US implementing legislation were rightly criticized for their facetious analysis. On that point, these four memos – or at least the three 2005 memos signed by Bradbury – are on the whole admittedly not as obviously bad. The legal analysis at times even sounds plausible – thought it is manifest that the advice given is actually not advice, but an apology for an already predetermined outcome. It is also riddled with caveats, with the OLC regularly saying that there is room for reasonable disagreement with its conclusions, or that a court might not arrive at the same result, etc. The occasional plausibility of the analysis is aided by the fact that the OLC is interpreting US statutes implementing the CAT, and that these contain Senate understandings and definitions which require narrower interpretations than the text of the treaty itself (this is what allows, for example, for strained interpretations of what constitutes severe mental pain or suffering).

But where these memos differ from the previously disclosed ones is in that they are an attempt to analyze (or, rather, justify) the various specific interrogation techniques used by the CIA against its high-value detainees. In other words, they apply the law to the facts, and the OLC had to get the facts from somewhere. That somewhere was, of course, the CIA itself – its interrogators, doctors, psychologists or what have you. And therein lies the rub. Just as the CIA interrogators can claim that they relied on OLC legal advice in good faith, so can the OLC lawyers claim that they relied in good faith on the CIA’s presentation of the facts.

Just read, for example, the sterile narrative of the various measures to be employed against Abu Zubaydah, the first high-value detainee, in the first new memo. The possible adverse effects of the (cumulative) application of these various measures on Abu Zubaydah’s physical and mental health are constantly and consistently downplayed, and are generally portrayed in euphemistic terms as mere ‘discomfort’ or ‘distress’, rather than suffering. Factual determinations, such as that there was no suffering, are based on the account of doctors participating in interrogation, or on the experiences of the US military’s own SERE program that attempts to train resistance to these interrogation techniques. No attempt is made at any time to ascertain directly the views of the detainees themselves, or the actual reality of the interrogations – the CIA is always taken at its word. Contrast, for instance, the OLC’s account of the techniques to be used against Abu Zubaydah, and Abu Zubaydah’s own (probably quite credible) harrowing account in the recently leaked ICRC report (at Annex I).

That none of the techniques arises to the level of torture comes as no surprise. Indeed, it could be reasonably said that most of the techniques do not amount to torture, especially if used in isolation. What did come as a bit of a surprise was the ‘bug in a box’ method – since Abu Zubaydah was determined to have an irrational fear of insects, it was proposed to put him in a confined box with an insect that could then merrily crawl all over him. Though the insect would have been harmless, Abu Zubaydah would have been told otherwise. Naturally, this bug method was also not considered to be torture by the OLC, but it was in fact never used even though it was authorized – it was probably thought to have been just a tad too medieval for modern sensibilities. Or too Orwellian.

The various discussions of waterboarding are also well worth a read – not because they are patently false, but because they show just how manipulable law can be. At one point the OLC actually acknowledges that the waterboarding used by the CIA is different from that used in SERE, since it is ‘for real.’ It also recognizes that the person being waterboarded might actually inhale some water, potentially causing serious medical problems such as pneumonia. The answer to that particular concern? Instead of water, use sterile saline solution for the waterboarding, or should I say, saline-boarding.

Right about now any international lawyer worth his or her salt would be saying, well, okay, even if enforced nudity, shackling and sleep deprivation for up 180 hours, and ultimately waterboarding do not constitute torture, surely they constitute cruel, inhuman or degrading treatment. I mean, they must, mustn’t they? We are all reasonable people, we all know that there is room for reasonable disagreement as to whether a particular treatment qualifies as torture or as CID – this is after all evident from the ample jurisprudence of international human rights tribunals. But surely, at the very least, waterboarding and the cumulative use of these various measures qualify as CID by any definition, and CID is equally prohibited as torture.

Well, no, not according to the OLC. Its fourth memo deals with CID under Article 16 CAT, and deploys three arguments to deny that any of the measures can run afoul of Article 16, whether cumulatively or in isolation.

First, as you might expect, there is the argument that the CAT does not apply extraterritorially – but this time it is rather more sophisticated, and harder to disprove. Like many articles of the CAT, Art. 16 requires a state party to prevent CID in ‘any territory under its jurisdiction.’ (see more here on the various types of jurisdiction clauses). The OLC accepts that this provision is not confined merely to those territories to which the state has title, but also to those over which the state has de facto authority. However, says the OLC, the CIA has informed us it is not conducting the interrogations of high-value detainees in any such territory. Therefore, Art. 16 CAT does not apply.

Let me translate that for you: because we are holding this people in some undisclosed secret prison – be it someplace in Afghanistan, Poland, or what have you – in a place, but not in a territory over which we have effective overall control, the treaty does not apply on its own terms. And like it or not, that’s not a bad textual argument, morally repugnant thought it might be. (There are two ways around it – either that a place in essence also counts as a territory, although a very small one (cf. Art. 4(1) of the Optional Protocol to the CAT), or that the negative obligation of state agents not to engage in CID does not depend on a territorial jurisdiction threshold, though the positive obligation to prevent CID does; neither of these counter-arguments is immediately apparent to be correct, however.)

Secondly, if the previous argument fails, the OLC turns to the US reservation to Art. 16 CAT, that provides that CID within the meaning of the CAT will be understood as cruel and unusual punishment as defined by the applicable provisions of the Bill of Rights of the US Constitution. Since, in the OLC’s view, the US Constitution does not apply extraterritorially to aliens, neither does the CAT.

Thirdly, if all this extraterritoriality business fails to persuade, the OLC turns to substance. Because the applicable standards are due to the reservation those of the US Constitution, and because a treatment is prohibited under the US Constitution only if it ‘shocks the conscience’, this is not CID because it, well, doesn’t shock the conscience. It doesn’t because the test requires balancing between the state’s interest to acquire vital information, and the individual’s interest in preserving his or her dignity. The former, of course, prevails.

This final argument epitomizes all that is so wrong with the OLC’s lawyerly endeavor – avoiding issues of substance through redefinition, anodyne euphemisms and sterile (remember the saline?) bureaucratic word-parsing, all the while hypocritically emphasizing that torture is contrary to international and domestic legal norms. And after all of these dozens of pages of discussion, footnotes and citations, one could still scream at the lawyers who produced them a single common sense question: if some of these techniques don’t cause severe physical or mental pain or suffering, then in God’s name, why do they work (as you say they do)? Why would a hardened Al-Qaeda operative who suffers from mere ‘discomfort’ or ‘distress’ be willing to divulge data on his co-conspirators, contrary to all that he believes in? In that sense at least, regardless of all of their other faults, the torture memos are entirely self-defeating.

One Response

Your last paragraph goes right to the heart of it Marco. The US torture statute states:

“As used in this chapter — ‘torture’ means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control[.]”

As badly drafted as it is, that really doesn’t leave any room for their sophist quibbles — they acted purposefully with the intent ot inflict suffering severe enough to force someone to cooperate against their will.

I’ve been listening to their dishoinest alibis for seven years now: let them tell it to an impartial jury.

About the Author(s)

Marko Milanovic

Dr Marko Milanovic is Professor of Public International Law at the University of Nottingham School of Law. He is co-editor of EJIL: Talk! and a member of the EJIL's Editorial Board. Read Full